Calumet Auto Co. v. Diny

• Decision Date: 11 May 1926
• Citation: 208 N.W. 927,190 Wis. 84
• Parties: CALUMET AUTO CO. v. DINY.
• Court: Wisconsin Supreme Court

190 Wis. 84

208 N.W. 927

CALUMET AUTO CO.

v.DINY.

Supreme Court of Wisconsin.

May 11, 1926.

Appeal from Circuit Court, Calumet County; Fred Beglinger, Judge.

Action by the Calumet Auto Company against Peter Diny. Judgment for plaintiff, and defendant appeals. Affirmed.L. P. Fox, of Chilton, for appellant.

Helmuth F. Arps, of Chilton, for respondent.

OWEN, J.

This action was brought by the plaintiff to recover for damages to one of its automobiles occasioned by the negligence of the defendant while said automobile was in the possession of a bailee. It appears that one Wolfmeyer left his car at plaintiff's garage to be repaired. Plaintiff loaned one of its second-hand cars to Wolfmeyer to be used by him while his car was being repaired. On the 16th day of September, 1923, Wolfmeyer was driving said car along the highway with the intention of turning in upon a private driveway leading to farm premises on the right side of the highway. Before turning to drive into said premises, and in order to facilitate the turn, he drove over to the left of the highway. The defendant was driving his car on the right side of the highway a short distance behind Wolfmeyer. When Wolfmeyer slowed down and turned to the left side of the highway the defendant attempted to pass him on the right side. When Wolfmeyer turned to the right to enter upon the driveway leading to said premises, defendant was too close to stop, and his car collided with the plaintiff's car, driven by Wolfmeyer, inflicting damage which plaintiff seeks to recover in this action.

The case was tried by the court without a jury. The court found both Wolfmeyer and the defendant negligent; held that Wolfmeyer's negligence was not imputable to the plaintiff; and rendered judgment in favor of the plaintiff and against the defendant.

Three questions are presented by this appeal: First, whether the finding of defendant's negligence is supported by the evidence; second, whether the negligence of Wolfmeyer is imputable to the plaintiff; and, third, whether the damages are excessive. The court found that the defendant was negligent in driving at an excessive rate of speed and in failing to blow the horn or to give warning that he was passing Wolfmeyer on the right. Without discussing the question of whether the defendant was driving at an excessive rate of speed, we consider the finding that the defendant was negligent in failing to give any warning of his intention to pass the car driven by Wolfmeyer on the right is fully justified,...